Most advocates know how burdensome - even embarrassing - it is to advance weak submissions.
We used to have a Court of Appeal justice who, after counsel had completed extended submissions on what was apparently thought to have been a strong ground of appeal, would ask (in a darkly humorous sort of way), “Is that your strongest point?” [1]
The Privy Council has had to remind us that it is a duty of counsel to focus on arguable points: Ruhumatally v The State (Mauritius) [2024] UKPC 15, at 55:
“The Board does not wish to be unfairly critical. It of course understands the difficulties sometimes faced by defence advocates who, trying their best to discharge their professional duties towards their lay clients, are anxious not to overlook any point or argument which may assist the defence. It is however an important part of the advocate’s role to exercise judgement and discrimination in focusing on the arguable points, rather than obscuring them by a plethora of poor points and weak submissions. No court is assisted by the multiplication of arguments regardless of their merit. Nor is a defendant assisted by such an approach, which runs the risk of undermining the stronger points in the defendant’s favour. It must, moreover, be clearly understood that a defendant who advances a multitude of arguments, including some which are plainly without merit, cannot thereby create an artificial ground of appeal based upon a complaint that the court below did not give a detailed response to every single point which was raised. In such circumstances, a failure by the court to address particular points in detail is not in itself an indication that the defendant’s case has not been considered and decided in accordance with the law.” [2]
This appeal against conviction for murder was successful (a retrial was ordered).
I have mentioned advocacy here, on 17 April 2015 (reviewing Alan Paterson’s most excellent book Final Judgment - The Last Law Lords and the Supreme Court), and also in noting R v Samaniego on 9 April 2022.
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[1] A judge who embarks on this sort of provocation can hardly complain if counsel replies with the gently sarcastic "Properly understood, yes."
[2] I think the same exercise of judgment and discrimination by counsel should be applied more frequently in decisions about whether to appeal in the first place. Weak appeals tend to cause the law to develop in ways that are not necessarily desirable. Examples may be found in the law of the admissibility of improperly obtained evidence.
